(By Delegates Stalnaker and Amores)
[Introduced February 15, 2005; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact §27-5-2 of the Code of West Virginia,
1931, as amended, relating generally to the institution of
proceedings for the involuntary commitment of individuals; and
requiring the Supreme Court of Appeals to prescribe
alternative procedures for mental hygiene proceedings.

Be it enacted by the Legislature of West Virginia:
That §27-5-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:

(a) Any adult person may make an application for involuntary
hospitalization for examination of an individual when the person
making the application has reason to believe that:
(1) The individual to be examined is addicted, as defined in
section eleven, article one of this chapter; or
(2) The individual is mentally ill and, because of his or her
mental illness, the individual is likely to cause serious harm to
himself or herself or to others if allowed to remain at liberty
while awaiting an examination and certification by a physician or
psychologist.
Notwithstanding any language in subsection (a) of this section
to the contrary, if the individual to be examined under the
provisions of this section is incarcerated in a jail, prison or
other correctional facility, then only the chief administrative
officer of the facility holding the individual may file the
application, and the application must include the additional
statement that the correctional facility itself cannot reasonably
provide treatment and other services for the individual's mental
illness or addiction.
(b) The person making the application shall make the
application under oath.
(c) Application for involuntary custody for examination may be
made to the circuit court or a mental hygiene commissioner of the
county in which the individual resides or of the county in which he
or she may be found. When no circuit court judge or mental hygiene
commissioner is available for immediate presentation of the
application, the application may be made to a magistrate designated by the chief judge of the judicial circuit to accept applications
and hold probable cause hearings. A designated magistrate before
whom an application or matter is pending may, upon the availability
of a mental hygiene commissioner or circuit court judge for
immediate presentation of an application or pending matter,
transfer the pending matter or application to the mental hygiene
commissioner or circuit court judge for further proceedings unless
otherwise ordered by the chief judge of the judicial circuit.
(d) The person making the application shall give information
and state facts in the application as may be required by the form
provided for this purpose by the Supreme Court of Appeals.
(e) The circuit court, mental hygiene commissioner or
designated magistrate may enter an order for the individual named
in the application to be detained and taken into custody for the
purpose of holding a probable cause hearing as provided for in
subsection (g) of this section for the purpose of an examination of
the individual by a physician, psychologist, a licensed independent
clinical social worker practicing in compliance with article
thirty, chapter thirty of this code or advanced nurse practitioner
with psychiatric certification practicing in compliance with
article seven of said chapter: Provided, That a licensed
independent clinical social worker or an advanced nurse
practitioner with psychiatric certification may only perform the
examination if he or she has previously been authorized by an order of the circuit court to do so, said order having found that the
licensed independent clinical social worker or advanced nurse
practitioner with psychiatric certification has particularized
expertise in the areas of mental health and mental hygiene
sufficient to make such determinations as are required by the
provisions of this section. The examination is to be provided or
arranged by a community mental health center designated by the
Secretary of the Department of Health and Human Resources to serve
the county in which the action takes place. The order is to
specify that the hearing be held forthwith and is to provide for
the appointment of counsel for the individual: Provided, however,
That the order may allow the hearing to be held up to twenty-four
hours after the person to be examined is taken into custody rather
than forthwith if the circuit court of the county in which the
person is found has previously entered a standing order which
establishes within that jurisdiction a program for placement of
persons awaiting a hearing which assures the safety and humane
treatment of persons: Provided further, That the time requirements
set forth in this subsection shall only apply to persons who are
not in need of medical care for a physical condition or disease for
which the need for treatment precludes the ability to comply with
said time requirements. During periods of holding and detention
authorized by this subsection, upon consent of the individual or in
the event of a medical or psychiatric emergency, the individual may receive treatment. The medical provider shall exercise due
diligence in determining the individual's existing medical needs
and provide such treatment as the individual requires, including
previously prescribed medications. As used in this section,
"psychiatric emergency" means an incident during which an
individual loses control and behaves in a manner that poses
substantial likelihood of physical harm to himself, herself or
others. Where a physician, psychologist, licensed independent
clinical social worker or advanced nurse practitioner with
psychiatric certification has within the preceding seventy-two
hours performed the examination required by the provisions of this
subdivision, the community mental health center may waive the duty
to perform or arrange another examination upon approving the
previously performed examination. Notwithstanding the provisions
of this subsection, subsection (r), section four of this article
applies regarding payment by the county commission for examinations
at hearings. If the examination reveals that the individual is not
mentally ill or addicted, or is determined to be mentally ill but
not likely to cause harm to himself, herself or others, the
individual shall be immediately released without the need for a
probable cause hearing and absent a finding of professional
negligence such examiner shall not be civilly liable for the
rendering of such opinion absent a finding of professional
negligence. The examiner shall immediately provide the mental hygiene commissioner, circuit court or designated magistrate before
whom the matter is pending the results of the examination on the
form provided for this purpose by the Supreme Court of Appeals for
entry of an order reflecting the lack of probable cause.
(f) A probable cause hearing is to be held before a magistrate
designated by the chief judge of the judicial circuit, the mental
hygiene commissioner or circuit judge of the county of which the
individual is a resident or where he or she was found. If
requested by the individual or his or her counsel, the hearing may
be postponed for a period not to exceed forty-eight hours.
The individual must be present at the hearing and has the
right to present evidence, confront all witnesses and other
evidence against him or her and to examine testimony offered,
including testimony by representatives of the community mental
health center serving the area. Expert testimony at the hearing
may be taken telephonically or via videoconferencing. The
individual has the right to remain silent and to be proceeded
against in accordance with the rules of evidence of the Supreme
Court of Appeals, except as provided for in section twelve, article
one of this chapter. At the conclusion of the hearing, the
magistrate, mental hygiene commissioner or circuit court judge
shall find and enter an order stating whether or not there is
probable cause to believe that the individual, as a result of
mental illness, is likely to cause serious harm to himself or herself or to others or is addicted.(g) Notwithstanding any other provision of this article, the
Supreme Court of Appeals, in consultation with the Secretary of the
Department of Health and Human Resources, shall prescribe
alternative or modified procedures for detention, examination,
certification, transportation, determination of probable cause,
payment for services related to mental hygiene proceedings, and
placement, to be used in connection with involuntary
hospitalization proceedings on a trial period basis in at least
two, but not to exceed four judicial circuits for four years
beginning on the first day of January, two thousand five:
Provided, That if the Secretary of the Department of Health and
Human Resources finds any pilot program is causing a substantial
additional burden on state resources, the Secretary of the
Department of Health and Human Resources may request that the
Supreme Court of Appeals modify or suspend the pilot program, and
the Supreme Court of Appeals shall comply with modification or
suspension of the pilot program: Provided, however, That in
planning, developing and implementing any pilot programs, the
Supreme Court of Appeals shall consult with and involve
representatives of mental health consumer and patient rights
groups. The alternative or modified procedures may authorize a
judicial officer approved by the Supreme Court of Appeals upon an
ex parte showing to the officer that there is probable cause to believe that an individual is, as a result of mental illness,
likely to cause serious harm to himself or herself or to others, or
is addicted, to make a probable cause finding and issue an order
appointing counsel and requiring involuntary hospitalization and
treatment: Provided further, That no hospitalization or treatment
may continue for more than ninety-six hours without a probable
cause hearing before a judicial officer, and no person may be
hospitalized or treated pursuant to any probable cause order
without certification by an approved and qualified mental health
professional or licensed medical or osteopathic physician: And
provided further, That if the medical authorities at the mental
health facility to which the person is committed determine that the
hospitalization or treatment is unwarranted, the person may be
released. The alternative or modified procedures: (1) May permit
probable cause hearings to occur in the county where a person is
hospitalized; (2) may permit judicial officers to employ
videoconferencing and telephonic technology in probable cause
determinations; (3) may permit persons hospitalized only until
detoxification is accomplished; and (4) may specify other
alternative or modified procedures that are consistent with the
purposes and provisions of this article. The alternative or
modified procedures shall fully and effectively guarantee to the
person who is the subject of the involuntary commitment proceeding
and other interested parties due process of law and access to the least restrictive available treatment needed to prevent serious
harm to self or others. The Supreme Court of Appeals may, subject
to the foregoing requirements, further modify the procedures
implemented during the four-year trial period established herein.
The Supreme Court of Appeals, additionally, shall report on the
results of trial period alternative procedures to the Legislature
on an annual basis.(g)(h) The magistrate, mental hygiene commissioner or circuit
court judge at a probable cause hearing or at a final commitment
hearing held pursuant to the provisions of section four of this
article finds that the individual, as a result of mental illness,
is likely to cause serious harm to himself, herself or others or is
addicted and because of mental illness or addiction requires
treatment, the magistrate, mental hygiene commissioner or circuit
court judge may consider evidence on the question of whether the
individual's circumstances make him or her amenable to outpatient
treatment in a nonresidential or nonhospital setting pursuant to a
voluntary treatment agreement. The agreement is to be in writing
and approved by the individual, his or her counsel and the
magistrate, mental hygiene commissioner or circuit judge. If the
magistrate, mental hygiene commissioner or circuit court judge
determines that appropriate outpatient treatment is available in a
nonresidential or nonhospital setting, the individual may be
released to outpatient treatment upon the terms and conditions of the voluntary treatment agreement. The failure of an individual
released to outpatient treatment pursuant to a voluntary treatment
agreement to comply with the terms of the voluntary treatment
agreement constitutes evidence that outpatient treatment is
insufficient and, after a hearing before a magistrate, mental
hygiene commissioner or circuit judge on the issue of whether or
not the individual failed or refused to comply with the terms and
conditions of the voluntary treatment agreement and whether the
individual as a result of mental illness remains likely to cause
serious harm to himself, herself or others or remains addicted, the
entry of an order requiring admission under involuntary
hospitalization pursuant to the provisions of section three of this
article may be entered. In the event a person released pursuant to
a voluntary treatment agreement is unable to pay for the outpatient
treatment and has no applicable insurance coverage, including, but
not limited to, private insurance or medicaid, the Secretary of
Health and Human Resources may transfer funds for the purpose of
reimbursing community providers for services provided on an
outpatient basis for individuals for whom payment for treatment is
the responsibility of the Department: Provided, That the
Department may not authorize payment of outpatient services for an
individual subject to a voluntary treatment agreement in an amount
in excess of the cost of involuntary hospitalization of the
individual. The Secretary shall establish and maintain fee schedules for outpatient treatment provided in lieu of involuntary
hospitalization. Nothing in the provisions of this article
regarding release pursuant to a voluntary treatment agreement or
convalescent status may be construed as creating a right to receive
outpatient mental health services or treatment or as obligating any
person or agency to provide outpatient services or treatment. Time
limitations set forth in this article relating to periods of
involuntary commitment to a mental health facility for
hospitalization do not apply to release pursuant to the terms of a
voluntary treatment agreement: Provided, however, That release
pursuant to a voluntary treatment agreement may not be for a period
of more than six months if the individual has not been found to be
involuntarily committed during the previous two years and for a
period of no more than two years if the individual has been
involuntarily committed during the preceding two years. If in any
proceeding held pursuant to this article the individual objects to
the issuance or conditions and terms of an order adopting a
voluntary treatment agreement, then the circuit judge, magistrate
or mental hygiene commissioner may not enter an order directing
treatment pursuant to a voluntary treatment agreement. If
involuntary commitment with release pursuant to a voluntary
treatment agreement is ordered, the individual subject to the order
may, upon request during the period the order is in effect, have a
hearing before a mental hygiene commissioner or circuit judge where the individual may seek to have the order canceled or modified.
Nothing in this section may affect the appellate and habeas corpus
rights of any individual subject to any commitment order.(h)(i) If the certifying physician or psychologist determines
that a person requires involuntary hospitalization for an addiction
to a substance which, due to the degree of addiction, creates a
reasonable likelihood that withdrawal or detoxification from the
substance of addiction will cause significant medical
complications, the person certifying the individual shall recommend
that the individual be closely monitored for possible medical
complications. If the magistrate, mental hygiene commissioner or
circuit court judge presiding orders involuntary hospitalization,
he or she shall include a recommendation that the individual be
closely monitored in the order of commitment.(i)(j) The Supreme Court of Appeals and the Secretary of the
Department of Health and Human Resources shall collect data and
report to the Legislature at its regular annual sessions in two
thousand three and two thousand four of the effects of the changes
made in the mental hygiene judicial process along with any
recommendations which they may deem proper for further revision or
implementation in order to improve the administration and
functioning of the mental hygiene system utilized in this state, to
serve the ends of due process and justice in accordance with the
rights and privileges guaranteed to all citizens, to promote a more effective, humane and efficient system and to promote the
development of good mental health. The Supreme Court of Appeals
and the Secretary of the Department of Health and Human Resources
shall specifically develop and propose a statewide system for
evaluation and adjudication of mental hygiene petitions which shall
include payment schedules and recommendations regarding funding
sources. Additionally, the Secretary of the Department of Health
and Human Resources shall also immediately seek reciprocal
agreements with officials in contiguous states to develop
interstate/intergovernmental agreements to provide efficient and
efficacious services to out-of-state residents found in West
Virginia and who are in need of mental hygiene services.

NOTE: The purpose of this bill is to establish a pilot project
designed to improve the involuntary commitment process and place
persons subject to involuntary commitment applications in less
restrictive environments.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.